Legal Positivism - the dominant theory in jurisprudence
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- čas přidán 3. 05. 2023
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Austin's theory of law: • Hart - Concept of Law ...
Hart's theory of law: • Hart - Concept of Law ... and • Hart - Concept of Law ...
This is a video lecture that explains the central theory, for the last two centuries, in the philosophy of law: legal positivism. I created this additional lecture because I found that the standard readings on the positivism v natural law theory debate (often as exemplified by figures like HLA Hart, Ronald Dworkin, John Finnis, and Joseph Raz) were not enough to get my students to latch on to exactly what legal positivism is.
Ah, so this money-stuff gets me candy. No wonder this Musk guy wants all of it.
Fun fact: Jaywalking laws were implemented at the behest of automobile manufacturers. Prior to their introduction roads were public spaces anyone could use. Pedestrians, horses, carts and carriages would share the road. When the much faster cars came about the owners and sellers of those cars wanted exclusive use of roads so they could drive faster and not be obstructed. So the vast majority of people who were pedestrians were banned from using roads in order to benefit the, at the time small, wealthy group of car owners.
Adam Smith found capitalism to be extortion. Legal theories in play serve to protect extortion and its swindling messages.
So you’re telling me I could have studied philosophy and gotten a law degree, thus earning a better salary? //shakes fist at his doctorate degree//
Imagine having to spend half a year studying something obvious because a lot of people apparently don't get it.
I've watched this man's entire playlist on Ethics, Introduction to philosophy, and philosophy of law. I'm not even a philosophy major I'm a Biology major. Please upload more
I think there's a somewhat analogous situation in discussions about art. There are people who say such-and-such is "not art" when what they're ultimately trying to say is they don't like it, and others who will say "of course it's art, it's just not good art".
I studied philosophy as an undergrad, and then this video comes out on the day I get accepted to Cornell law school. That’s crazy haha
In civil law systems (as opposed to the common law systems of the UK and US), most emphasis is put on written law and much less on case law. It is also held to a high significance that courts judge only by the law. In these systems, as well as in the Nuremberg trials as some have pointed out, the Natural Law Theory creates an obligation for justices to evaluate the eticality of legal rules. In civil law systems the Legal Positivism Theory does not grant courts the option to not punish people for breaking immoral law, unless it is specifically stated in said law. I found your description of the Natural Law Theory just a tad bit biased against it. This comes from a man who loves H.L.A. Hart's work too, but who also views it as limited to his theoretical background within the common law systems.
You talked about a benifit of legal positivism, being easier to explain, but if you want to also hold that people in a civil society should follow the law, a big downside for legal positivism means that what MLK Jr did was unjustified or even immoral when he broke the law. It also obviously gives legitimacy to bad laws, which was a defence of NAZIs after WWII (what they did was legal at that time), but that was not accepted in the Nuremberg trials.
This discussion about what law is and is supposed to be also had a really hard impact in the aftermath of World War 2.
Im currently in my last year of studiying law at university of Chile, also im assitant professor of the class "introduction to law", and I have to say that this video summarizes incredible well in 20 minutes what i have to teach to new students in one year.
On this account, if you consider the two theories from a functional perspective, it is conceivable that the differences between them are entirely semantic. Consider: if you view the law as morally indifferent, but believe that you should follow good laws and not follow bad ones, that is not functionally different from believing that you should always follow the law, but that bad laws aren't actually 'laws' at all (lex mala, lex nulla). Given the same inputs (laws or purported laws), you would come to the same conclusion as to whether they should or should not be followed (based upon either the conviction that they are bad laws, or that they aren't laws at all).
Dear Professor Kaplan - thanks a gazillion for these expositions; the best I've ever encountered, and believe me I've "encountered" a few. Much obliged.
Great video. You did a great job at explaining this very complex topic. What I would like to add is the jurisprudence of neo-natural law theory (unsure about this translation) as a response to the risk of amoral laws of legal positivism. Basically, the problem occured in nazi-germany where you would have people that lived in an amoral legal system and complied with those laws and therefore acts amoral but legal. Now, when the allied forces wanted to get these people convicted they would claim that they did nothing illegal - ignore international conventions for now - so they had to come up with a response to that. I recommend judge Jacksons texts from the Nuremberg tribunals if you are interested in this problem.
For what it's worth, I really liked your older videos that are just you and your board, no overlays, no cutting to videos, just you talking to the screen. I find them very... comforting? It's your unique style, and I think it's just great. I'd recommend going back to that. Will watch either way, though. :)
And if I understand all of that and am indeed way ahead of the game it's because you gave me a push ahead. Thanks Jeffery, you are an amazing help in so many ways.
Never realized I was a Law Posetivist because I always say a Law can't be a law if there are no repercussions for breaking it. It is a strong suggestion at best.
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I am so happy that I found your videos. I just watched the one on set theory and I the best way I can describe my reaction is "grateful." Again, Thank you.